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Canadian Criminal Procedure and Practice/Pre-Trial Matters/Adjournments

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General Principles

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An adjournment is re-scheduling of a court proceeding, be it arraignment, plea, trial, sentencing, or otherwise.

The granting of an adjournments is at the discretion of the judge (e.g. see s.571 and 645; 669.1(2)), but in practice is a frequent occurrence.

Discretion of the Judge

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It is a discretionary decision on whether to grant an adjournment requested. The decision is reviewable on the circumstances of the particular case, including the ability and quality of the accused.[1] This exercise of discretion is afforded considerable deference.[2]

A judge is typically not inclined to adjourn trial matters. The cost of resources to bring a matter to trial and the desire to bring a matter to a conclusion speaks to the judge's interest in having a matter proceed. This is balanced against the accused's right to a fair trial and right to be tried within a reasonable time.

Where the judge has grounds to believe that the request for an adjournment is a sham, the judge may refuse the adjournment.[3]

See a review of principles at R. v. White 2010 ABCA 66 at para 17.

  1. ↑ R. v. White 2010 ABCA 66
  2. ↑ R. v. Toor, 2001 ABCA 88 (CanLII) at para. 15 ("[t]he granting of adjournments and the exercise of judicial discretion are generally afforded a considerable degree of deference, and the law is well established in the area.")
  3. ↑ R. v. Amos, 2012 ONCA 334

Lack of counsel

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The judge has discretion to adjourn a trial on request of the accused for reason that they are not represented by counsel. The judge must consider the accused constitutional right to a fair trial. However, the accused also has the right to represent himself. Further, the right to be represented by counsel must be exercised "diligently and honestly", thus they may be refused if they have not acted honestly and diligently. The accused cannot be refused where the absence of counsel is not their fault.[1]

However, an accused who chooses not to have counsel cannot appeal a conviction on the grounds of not having effective representation.[2]

  1. ↑ R. v. Halnuck, 1996 CanLII 5275 (NS C.A.)
    R. v. Beals, (1993) 126 N.S.R. (2d) 130 (C.A.)
    R. v. Marzocchi, 2006 CanLII 13096 (ON C.A.)
    R. v. Bitternose, 2009 SKCA 54
    R. v. Bissonette 2003 ABCA 93
  2. ↑ R. v. Harris, 2009 SKCA 96 at 27

Lack of Preparation

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It is usually expected that an adjournment will be granted where there is late arriving evidence.[1]

Where a lawyer fails to properly prepare an adjournment is not required as there is a breach of their duty to the court and client.[2]

  1. ↑ R. v. Johnston, 1991 OntCA
  2. ↑ R. v. E.R.S. 1994 Atla.C.A.

Missing witnesses

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In order to adjourn a trial matter on the grounds of missing witnesses the applicant must establish:[1]

  1. that the absent witnesses are material in the case;
  2. that the party applying has not been guilty of laches or neglect in arranging for the attendance of the witnesses; and
  3. that there is a reasonable expectation that the witnesses will attend court on the date sought by the party applying for the adjournment.

The judge may also consider other relevant circumstances.[2]

  1. ↑ R. v. LeBlanc 2005 NSCA 37 -- no adjournment for crown in failing to subpoena witnesses
    R. v. Rose (D.A.) (1995), 140 N.S.R.(2d) 151 (SC) 1995 CanLII 4458
    R. v. A.T., 1991 CanLII 6104 (AB Q.B.) - factors to consider R. v. Shergill 2009 BCCA 55 -- judge should have granted crown adjournment for missing witness
    R. v. MacDonald, 1998 CanLII 18016 (NL C.A.) -- short adjournment for crown for missing witness
  2. ↑ R. v. Dang, 2005 ABCA 441 -- consequences of delay by adjournment

Case Digests

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  • R. v. Kandola and Johal, 2012 BCSC 1012 - adjournment for pre-sentence report denied
  • R. v. Sanborn, 2012 BCPC 41 -- crown not opposed -- adjournment denied
  • R v. Downey, 2011 ABQB 805 -- failure to grant an adjournment for a self-rep overturned
  • R. v. Cole, 2010 NSCA 59 -- crown adjournment of trial refused
  • R. v. Marshall, 2009 NSPC 6 -- Trial adjournment granted
  • R. v. Oliver and Morrison, 2005 CanLII 3582 (2005) 194 CCC (3d) 92 (Ont. CA) at para. 28
  • R. v. Brundia 2007 ONCA 725
  • R. v. Roebuck, 2001 ABQB 111
  • R. v. Nichols, 2001 CanLII 5680 (ON C.A.) -- refusal of adjournment mid-trial for firing counsel
  • R. v. J.E.B. 1989, 52 CCC 224 (NSCA)
  • R. v. Smith, (1989), 52 C.C.C. (3d) 90 (Ont. C.A.)
  • R. v. Manhas, [1980] 1 S.C.R. 591 1980 CanLII 72
  • Barrette, [1977] 2 SCR 121 1976 CanLII 80
  • R. v. Spataro, 1972 CanLII 25 (SCC), [1974] SCR 253
  • R. v. Warren (1973), 14 CCC 188
  • Darville v. The Queen (1956), 25 C.R. 1
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